The towns of Palmer Lake and Monument are in a gridlock over 21.8 million gallons of water, a bitter debate that could pit the towns against each other in court.

Palmer Lake residents, desperate to use the water to save their dry lake, thronged Monument’s Tuesday evening board of trustees meeting to plead for water.

Palmer Lake has been grappling with the state and other southern Colorado water districts since December 2013, when it asked to convert an old railroad water right into something that could save the lake.

The railroad water right has gone unused since the late 1950s, when Colorado’s railroads stopped running steam engines.

For the Town of Monument, losing 67 acre feet of water – an acre foot of water is enough to cover a football field in a foot of water – could have a serious impact on Monument Lake. The towns are working on a negotiation, but without a settlement their dispute will be take to court on Feb. 3.

Monument carefully monitors the lake, and even when it is down 1/100th, town administrators know, said Tom Tharnish, director of public works. Sixty-seven acre feet, or 21.8 million gallons a year, is about a month’s worth of drinking water for Monument.

“If you take 67 acre feet, there’s going to be an effect on Monument Lake,” he said.

While others have steadily dropped from the case, Monument has remained staunch about protecting the town’s water. But Tuesday’s meeting brought together residents from both towns, many of whom pleaded with the board of trustees to let Palmer Lake take the water.

Most argued that the towns are one community and should be invested in each other’s prosperity. Jodie Bliss, a Monument business owner, was one of a few Monument residents who spoke in favor of using the water right to fill the lake.

“I support filling Palmer Lake,” she told the trustees. “My point of view has to a lot to do with the fact that we are one community.”

Residents like Bliss packed the town hall and filled the parking lot. One man in the audience spoke out against Monument turning the water rights over to Palmer Lake. Other audience members joked that the famed “tri-lakes region” has only two lakes.

Jeff Hulsmann of Awake Palmer Lake, a group founded to help resuscitate the lake, was the last to speak on Tuesday. He echoed earlier pleas to encourage cooperation between the two closely connected towns.

“It’s incredible to me how many people came up here and said, ‘Well, I live in Palmer Lake but I used to live in Monument’,” he said. “I implore you, do something that works for all of us.”

When Palmer Lake resident Cynthia Graff took her seat in front of the Monument board of trustees last week, she was one in a long line of area residents who came to plead for a timeless Western right – water.

Water, specifically in Palmer Lake, is part of what drew Graff and others to the Tri-Lakes region. Even after development cut off the flow of runoff into the natural lake, Palmer Lake residents have fought for six decades to keep the iconic lake full. But now the town is fighting for the water against close competitors, the town of Monument and its lake, pitting the survival of one lake against another.

For some locals, the fight over an old railroad water right has one resolution – to fill Palmer Lake, which has been dry since 2012 and began losing water a decade ago.

“We just think this is our water,” Graff said at Tuesday’s meeting. “We deserve to have it back in our lake so we can deserve to be the Tri-Lakes area again.”

Although the meeting was thronged with Monument business owners, Palmer Lake residents and combinations of both advocating to fill the lake, the towns’ lawyers have yet to agree on the fate of 21.8 million gallons of water.

Palmer Lake has been unofficially tapping into the water, once used to fill steam engines on the Denver & Rio Grande Railroad, since the engines were pulled from the tracks in the late 1950s. But when the town filed in December 2013 to make that water use official, it met with state and local resistance – common in a state where water rights have always been carefully protected.

The town asked for 67 acre feet of water to fill the lake each year – an acre foot is enough to cover a football field in a foot of water.

One by one, objectors to Palmer Lake’s plan to fill the lake settled with the town, all except Monument. Using the water to fill Palmer Lake would lower levels in Monument Lake, which has been declining because of evaporation, said Tom Tharnish, Monument’s director of public works.

“If you take 67 acre feet, there’s going to be an effect on Monument Lake,” Tharnish said.

Unless the towns can settle on the fate of the water, the fight is headed to court Feb. 3. Jeff Hulsmann of Awake Palmer Lake, a nonprofit created to help restore the lake, believes the town stands a good chance to secure the water it needs.

“We have an awful lot of confidence that we will win in court,” he said.

Hulsmann has a complicated relationship with both towns – as do many people who live in one town but own a business in the other. Hulsmann knows that ultimately helping Palmer Lake could mean harming Monument Lake.

“I lose on both ends of this deal,” he said.

A rare body of water

As legend has it, when General William Jackson Palmer scouted southern Colorado for railroad routes, he believed Palmer Lake – the only natural lake for miles around – to be truly unique.

“He apparently said, ‘It was the only open body of water between Denver and El Paso, Texas,'” said Tom VanWormer, of the Palmer Lake Historical Society.

Palmer Lake became an essential part of southern Colorado life, supporting a resort town and providing water for steam engines and ice for refrigeration. Palmer wasn’t the first to discover it, however – Ute Indians lived nearby long before William Finley Thompson plotted the area in the 1880s and christened “Loch Katrine.”

Although Palmer eventually gave his name to the lake, it remained a contested source of water and recreational spot for railroads passing through, VanWormer said. Palmer’s Denver & Rio Grande railway later competed with the Atchison, Topeka and Santa Fe Railway for use of the lake’s water and shores.

“It was a great place to come and picnic, to row boats around,” VanWormer said. But to keep the rival railroad’s passengers from venturing to the lake, Palmer had an “8-foot tall barbed wire fence” built on the AT&SF side, VanWormer said.

Later, reservoirs and dams would add Monument and Woodmoor lakes – giving the Tri-Lakes region its name. None of lakes were used for drinking water. Instead, the towns relied on reservoirs and wells to put water in their taps and used creeks to fill their lakes. But when railroads retired steam engines, water in the Tri-Lakes area took on a new significance – supporting increasing populations and keeping the lakes, diminished without runoff, full.

‘It’s an emotional issue’

Thanks to a lease from the railroad, Palmer Lake had tacitly used the old railroad water right to fill its lake for half a century. But in 2002, a severe drought year, publicity about the lake’s ability to stay full brought scrutiny to that agreement, Hulsmann said.

“In 2002, the state comes down and says, ‘Hey, what are you guys doing?'” Hulsmann recalled. “So essentially the state says you can’t use the water right (because) it’s an industrial water right.” [ed. emphasis mine]

Palmer Lake purchased the leased water right in the 1980s, but in state records, the right was still marked for industrial use. According to Colorado’s water laws, it could not be used to fill the town’s lake. In December 2013, Palmer Lake filed to have the right declared a municipal one, fair game for lake-filling. But nothing is that simple in water court.

“So basically everybody downstream objects, and we expected that. If you don’t object then you get no information,” Hulsmann said.

To prove its right to use some of the water abandoned by the railroad, Palmer Lake hired expert witnesses to delve into decades of data on the railroad’s water use. Calculating the number of engines that passed by the lake per day between 1871 and 1955 – 20 to 30 – and factoring in tank size, the study determined that Palmer Lake could use 112 acre feet a year to fill the lake. The town settled for 67 acre feet, Hulsmann said.

The objectors – among them the Colorado Water Conservation Board and the city of Colorado Springs – eventually settled with Palmer Lake, but the town of Monument remained the sole objector, claiming that Palmer Lake abandoned the water and had no right to champion for its official use to fill the lake. Monument officials believe that Palmer Lake has yet to exhaust all ways to get water – for instance digging wells or purchasing another water right. Nonetheless, administrators from both towns say an agreement is in the works.

“There are still negotiations going on,” said Gary Shupp, the lawyer for the town of Monument. “Whether this case goes to trial or not still remains to be seen.”

Palmer’s days of railroad wars are long over, but the subject of water clearly remains a deeply personal one when it comes to Palmer Lake’s survival. At Tuesday’s trustees meeting, residents claimed all chairs and standing room. All but one person spoke up and asked the board to drop Monument’s objection to Palmer Lake’s water use request. Ultimately, Monument Mayor Rafael Dominguez had the last word.

“If we could all get together and try to figure this out without getting attorneys involved, I’m all for it,” he said. “We don’t want to harm Palmer Lake at all. But it’s a water rights issue. And water rights are a big issue in the state of Colorado.”

The residents absorbed his comments and then, one by one, got up and left the room.

Irrigators and water officials looking to conserve groundwater in the San Luis Valley got a small dose of good news this week. The volume in the unconfined aquifer — the shallower of the valley’s two major groundwater bodies — increased by 71,440 acre-feet in 2014.

“We did turn the corner,” said Allen Davey, an engineer who conducts the Rio Grande Water Conservation District’s groundwater monitoring.

The increase was the first since 2009.

Davey attributed the hike to better stream flows than had been seen in recent years.

He also pointed to a decline in pumping in Subdistrict No. 1, which has used a combination of fees on pumping and the fallowing of farm ground to reduce demand on the aquifer in the north-central part of the valley.

The unconfined aquifer has traditionally been used by farmers in the valley to water crops like potatoes, barley and alfalfa when the availability of surface water declines in mid- to late-summer.

Recharge to the shallow aquifer occurs from streams entering the San Luis Valley floor, canal leakage and irrigation return flows.

Despite this year’s slight improvement, the unconfined aquifer has declined by more than 1.2 million acre-feet since monitoring began in 1976.

An acre-foot is the equivalent of roughly 325,000 gallons of water.

The long-term decline is of concern to the managers of Subdistrict No. 1, who have the goal of increasing the volume of the unconfined aquifer by 800,000 to 1 million acre-feet.

David Robbins is an attorney for the Rio Grande district, which acts as the umbrella organization for the subdistrict.

He said the subdistrict’s board is wrestling with the question of whether to seek a change in its water management plan.

“There are many within the subdistrict boundaries and elsewhere who are concerned there hasn’t been a more dramatic increase in water supply within the subdistrict,” he said.

A state engineer’s review of a plan to lease water from the Catlin Canal to upstream cities will move to the Colorado Water Conservation Board later next week. The state board is scheduled to review the plan on Jan. 26, the first day of its two-day meeting in Denver.

The plan is the first pilot project under 2013 legislation, HB1248, that allows the CWCB to review projects that lease water from farms to cities on a long-term, temporary basis. In order to provide the water, agricultural land must be dried up during the lease. No more than 30 percent of any given farm may be fallowed during the 10-year lease period.

Seven farms with 1,128 acres on the Catlin Canal will be dried up on a rotational basis to provide up to 500 acre-feet (163 million gallons) per year to three municipal water users: Fowler in Otero County, and Fountain and the Security Water and Sanitation District in El Paso County. If approved, the lease would begin this year.

The CWCB accepted the project in September, but will look at the details in the upcoming review. The state engineer’s office reviewed the plans in a way similar to a water court application or substitute water supply plan.

Bill Tyner, assistant Water Division 2 engineer, told the Southeastern Colorado Water Conservancy District Thursday that a review of the application has been completed and will go to the CWCB next week with a recommendation to proceed.

The review included concerns about impacts on other water rights from Southeastern and other groups in the Arkansas Valley.

“It’s an important time in the Arkansas River basin for those who have tired to get a lease-fallowing program going. It’s finally going to occur,” Tyner said.

The program is supported by the Arkansas Valley Super Ditch, a corporation that includes members from several ditches, as well as the Lower Arkansas Valley Water Conservancy District.

More HB13-1248 coverage here. More Arkansas River Basin coverage here.

The state is looking at changes in water policy that will allow more efficient use of water without violating the prior appropriation doctrine of “first in time, first in use.” The policies deal with a “free river,” a concept that is not found in state statute, and futile calls, which are accounted for in law, but difficult to administer.

A free river occurs when every water right is satisfied, such as during a flood. In the Arkansas River basin, that condition has not occurred on a widespread scale since 1999, and occurred only about a dozen times in the last 60 years.

A futile call occurs when water in a reach of stream cannot physically be delivered to a senior water right in another area, even though it is in priority. That can occur during flash flooding, but also during well pumping when groundwater levels are high.

“The policies, especially the policy dealing with futile call, are less focused on the determination of the stream condition and instead are focused on administration of diversions once the stream condition has been determined,” Deputy State Engineer Kevin Rein said in an email last week.

“The actual objective of the two policies is to set out the direction through which the State Engineer’s Office and the division engineer can allow maximum utilization of the water supply while complying with the law and preventing injury.”

The policies most likely would be useful in discussions about flood control structures on Fountain Creek, particularly those designed to stop catastrophic floods. The question of water rights is under review by a technical committee.

It also could answer similar questions that have arisen in the South Platte River basin following record flooding in 2013.

The free river policy has provisions for storage under existing water rights or without a water right, as long as water is put to a beneficial use. The policy would allow for storage beyond a decreed water right. It would prevent injury to senior water rights and requires compliance with existing water storage regimen.

The water could be stored for a one-time use, with successive use of return flows determined by the division engineer on a case-by-case basis.

The futile call policy also makes provisions for diversion into storage with or without a water right, and outlines the state’s position that such diversions could become conditional or absolute water rights.

Can the state of Colorado issue a water right to irrigate marijuana plants when federal law still says that growing pot is a crime?

That’s the question being asked by a division engineer and a water referee in Division 5 water court in Glenwood Springs, in response to a water rights application filed by High Valley Farms LLC.

“Even though the cultivation of marijuana and the sale of marijuana is legal in the state of Colorado, because it is still not legal under federal law, this question is still out there — whether beneficial use includes any use that is not legal under federal law,” said Alan Martellaro, the division engineer in Division 5.

Martellaro said a water right in Colorado can be issued only if the water is being put to a beneficial use, such as irrigation.

But the use of the water also has to be lawfully made. If it is not a lawful use, it is not a beneficial use, and so no water right can be issued.

On the other hand, Martellaro recognizes the logic of a counterargument, which is that if it is legal under state law to grow pot plants, then it is a lawful act to water them, regardless of federal law.

“We’re not coming down one way or the other, we just want an answer,” Martellaro said.

High Valley Farms, LLC is controlled by Jordan Lewis, who owns the Silverpeak marijuana store in Aspen and a new 25,000 square-foot indoor marijuana growing facility along the Roaring Fork River south of Basalt.

High Valley Farms filed an application with the water court in August seeking the right to annually pump 2.89 acre-feet of water (941,710 gallons) from the Roaring Fork River to irrigate 2,000 to 3,000 marijuana plants in the Basalt facility.

It also is seeking approval of an augmentation plan for a back-up supply of water.

‘APPLICANT MUST EXPLAIN’

On Nov. 19 Martellaro, after conferring with the Division 5 water court referee Holly Strablizky, issued a “summary of consultation” about the High Valley Farms application.

“The applicant must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined in (Colorado state law),” the summary of consultation stated.

“Specifically,” the summary report said, ”beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

The word “lawfully” is in italics in Martellaro’s summary report, but that’s the extent of how the question is posed.

Whether it is legally a “beneficial” use or not, watering marijuana plants in Colorado is a valuable practice.

In the first 10 months of 2014, people spent $574 million on marijuana legally grown in Colorado, according to “The Cannabist” at The Denver Post.

In May, the U.S. Bureau of Reclamation issued a policy in response to Washington state and Colorado legalizing the growing of marijuana.

The federal agency said it “will not approve use of Reclamation facilities or water in the cultivation of marijuana,” given that the Controlled Substances Act of 1970 still prohibits growing weed.

This has lead to a tentative working assumption by some water providers that it is OK in Colorado to provide water for irrigating marijuana plants, as long as it is done with “nonfederal” water.

The augmentation plan filed by High Valley Farms includes a contract for a back-up supply of water from an irrigation ditch owned by the Basalt Water Conservancy District.

The Basalt district often leases water it controls in Ruedi Reservoir, which is a Bureau of Reclamation facility.

But the contract between High Valley Farms and the Basalt district says the water provided on High Valley’s behalf will be only from “nonfederal sources.”

High Valley’s augmentation plan also includes a contract to buy water from the Colorado River District out of Wolford Reservoir, which is a nonfederal reservoir north of Kremmling.

PRECEDENT-SETTING CASE?

Other marijuana-growing operations in Colorado have so far gotten their water by using existing water rights, Martellaro said, not by applying for new ones.

For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.

Martellaro said this is apparently the first time an applicant has filed in Colorado for a new water right specifically to grow marijuana.

Beth Van Vurst, a water attorney for High Valley Farms, responded to the division engineer’s summary of consultation on Dec. 19.

“The procedure for addressing this concern will be discussed at the next status conference,” Van Vurst told the court, which has set the next conference for Jan. 13.

At that time, Martellaro expects that a deadline will be set for High Valley Farms to file a legal brief on the issues raised by the court.

Van Vurst said Wednesday she could not discuss the issues in the case as they are pending before the water referee.

If High Valley Farms does file a legal brief, Strablizky, the water referee, would have several options, Martellaro said.

She could accept the explanation from High Valley Farm and the matter could end there.

She could, without making a ruling, refer the case to Judge James Boyd, who presides over Division 5 water court.

She could reject the legal argument, and High Valley Farms could then appeal to Boyd.

And if the judge eventually rules against it, High Valley Farms could appeal directly to the Colorado Supreme Court.

Many water court cases include a number of parties that have filed “statements of opposition” in the case, which gives them standing to appeal decisions.

However, only one party has filed a statement of opposition in the High Valley Farms case, and that’s the Roaring Fork Club.

The club’s office is next door to Silverpeak’s new growing facility and it owns water rights on the Roaring Fork River.

“The Roaring Fork Club will probably get invited to weigh in on this, but we’re very likely to take no position on this issue,” said Scott Miller, a water attorney representing the club, referring to the issue raised by seeking a right to water marijuana plants.

“Our primary issue in this case is to protect our water rights in this stretch of river, which is already heavily diverted,” Miller said.

Aspen Journalism, The Aspen Times and the Glenwood Springs Post Independent are collaborating on coverage of rivers and water. More at http://www.aspenjournalism.org.